Update: On February 19, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On October 23, 2019, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Clinton D. Faggs, III, 2018-1592. At issue in this case is whether, in a criminal prosecution of a parent for domestic violence pursuant to R.C. 2919.25(A), the State bears the burden to prove unreasonable parental discipline, or if reasonable parental discipline is an affirmative defense. The case was accepted on discretionary appeal and conflict certification, and was consolidated with case number 2018-1501. The case will be argued in the auditeria of Montpelier Jr./Sr. High School,  Williams County, as part of part of the Court’s off-site program.

Case Background

In 2017, Clinton D. Faggs (“Faggs”) lived with his girlfriend, H.K. (“Mother”) and her seven-year old son, T.M. Though T.M. is not Faggs’ biological child, at the time, Faggs acted as a parent and the primary disciplinarian to T.M. who had a long history of being disruptive at school and at home.

In January of 2017, T.M. broke a computer at school, causing school officials to send him home. At home, Faggs used the cord of an Xbox controller to hit T.M. several times on the arms and legs, though Faggs was apparently aiming for T.M.’s buttocks. T.M. also claimed that Faggs strangled him and slammed his head against the living room wall, though T.M. did not have any physical injuries that matched those allegations. The following day, Mother contacted the Delaware City Police Department about Faggs’ treatment of T.M. Faggs was charged with several counts of assault and domestic violence against T.M. and Mother. Pertinent to this appeal are the charges related to T.M.

In a bench trial in August of 2017, Delaware County Common Pleas Court Judge Elliot Krueger found Faggs guilty of domestic violence and assault against T.M. In doing, so Judge Kruerger made this finding:

“The court, as far as the burden of proof here, certainly I think that if the burden of proof’s on the defense by a preponderance, they have not met the burden of proof. If the State burden of proof is to show that it’s unreasonable, the court would find that they have met that burden of proof.”

Faggs was sentenced to four years of community control.

The Appeal

In a unanimous decision, authored by Judge Wise and joined by Judges Gwin and Baldwin, the Fifth District affirmed the trial court’s judgment, upholding the conviction against Faggs. On the issue pertinent to this appeal, the Fifth District held that “reasonable parental discipline” is an affirmative defense to a charge of domestic violence. Furthermore, the appellate court stated that placing the burden of proof of an affirmative defense on the defendant did not create a due process violation.

Certified Conflict Question

“In a criminal prosecution of a parent (or an adult acting in loco parentis) for domestic violence under R.C. 2919.25(A), where the defendant’s acts relate to corporal punishment of a child, does the State bear a burden to prove unreasonable parental discipline, or is reasonable parental discipline in the nature of an affirmative defense?”

Certified Conflict Case

State v. Rosa, 2013-Ohio-5867  (7th Dist.) (“in order to convict a parent of domestic violence pursuant to R.C. 2919.25, as part of the ‘physical harm’ element, the State bears the burden of proving the parent’s discipline was improper and unreasonable.”)

Votes to Accept the Case

Yes: Justices DeWine, Kennedy, Fischer, Donnelly, and Stewart

No: Chief Justice O’Connor and Justice French

Key Statutes and Precedent

R.C. 2919.25(A) (“No person shall knowingly cause or attempt to cause physical harm to a family or household member.”)

R.C. 2901.01 (A)(3) (“Physical harm to persons means any injury, illness, or other physiological impairment, regardless of its gravity or duration.”)

R.C. 2903.13(A) (“No person shall knowingly cause or attempt to cause physical harm to another or to another’s unborn.”)

R.C. 2919.22(B)(3) (No parent, or person acting in loco parentis, may administer excessive corporal punishment.)

R.C. 2901.05(D)(1)(b) (An affirmative defense is “[a] defense involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.”)

Meyer v. Nebraska, 262 U.S. 390 (1923) (parents have a fundamental liberty interest in raising their children as they see fit.)

In re Winship, 397 U.S. 358 (1970) (the prosecution must prove every element of a crime “beyond a reasonable doubt” for the defendant to be convicted.)

Patterson v. New York, 432 U.S. 197 (1977) (state legislatures have the power to allocate burdens or proof and burdening a defendant with proving an affirmative defense does not inherently violate due process.)

State v. Suchomski, 58 Ohio St.3d 74 (1991) (R.C. 2919.25(A) does not outlaw reasonable corporal punishment of a child by a parent.)

Faggs’ Argument

It is undisputable that parents have a fundamental right to raise their children as they see fit. It is also well established that reasonable corporal punishment is a lawful way parents, and adults in loco parentis, can discipline, control, and raise children.  The Court should adopt the Seventh District’s view which places the burden on the State to prove unreasonable use of corporal punishment as parental discipline against a parent, or person acting in loco parentis, charged with domestic violence under R.C. 2919.25(A). Placing the burden on the accused to prove his innocence whenever corporal punishment is used is unconstitutional.

The “physical harm” component of R.C. 2919.25(A) is a low burden to meet. The General Assembly defined this threshold as “any injury, illness, or other physiological impairment, regardless of its gravity or duration.” Therefore, under the statute, any use of corporal punishment could be considered “physical harm,” even though corporal punishment is a legal disciplinary technique in Ohio.

The Fifth District improperly requires a parent using corporal punishment to prove that his parental discipline was “reasonable” via an affirmative defense. Requiring a defendant who has used reasonable corporal punishment to prove his innocence through an affirmative defense violates due process.

In State v. Suchomski, the Court made it clear that R.C. 2919.25(A) should not prevent a parent from properly disciplining a child. In fact, this method of convicting a parent under R.C. 2919.25(A) circumvents the child endangerment statute, R.C. 2919.22(B)(3), which places a much higher burden on the State to prove that the defendant’s use of corporal punishment was excessive. According to the rules of statutory interpretation, the State should be required to comply with burdens of proof set forth in the more specific statute. Therefore, the State should be required to prove that unreasonable parental discipline was used by the defendant.

Furthermore, “reasonable parental discipline” as an affirmative defense doesn’t make statutory sense. First, the General Assembly has never explicitly provided that “reasonable parental discipline” is a valid affirmative defense, unlike other affirmative defenses that are laid out by statute. Affirmative defenses are used when the defendant had an excuse or justification for doing an activity that was, by its nature, illegal (i.e., self-defense for murder). Corporal punishment is not inherently illegal; rather it is a valid disciplinary technique. The parent is not doing anything wrong until the corporal punishment becomes “excessive.” Thus, using “reasonable parental discipline” as an affirmative defense is not in line with typical statutory requirements for affirmative defenses.

A non-codified affirmative defense may be implied by a statute where the defense involves “an excuse or justification peculiarly within the knowledge of the accused.” However, “reasonable parental discipline” does not qualify under this provision. A parent-defendant is not the only person who knows whether his use of corporal punishment was reasonable. Police are asked to look at a totality of circumstances when deciding to arrest a person based on excessive corporal punishment. The fact that the State places a responsibility on an outsider, a law enforcement officer, to make an initial and immediate determination of whether excessive corporal punishment was used proves that “reasonable parental discipline” is not peculiarly within the knowledge of the defendant.

Parents have the nationally recognized right to control how their children are raised. By adopting the Fifth District’s view, any parent who uses corporal punishment can be easily convicted based on the “physical harm” requirement of the statue. The State’s burden of proof should be higher than the physical harm standard. The State should be required to prove that the defendant’s parental discipline was excessive, thus complying with the narrower child endangerment statute. Essentially, a parent’s innocence should not rest on his ability to prove that his normal, historically accepted method of child rearing is “reasonable” in court. Thus, the Fifth District’s opinion violates due process where the Seventh District’s opinion does not.

Finally, in this case, the trial court’s verdict was not sustained by sufficient evidence. The evidence was insufficient for a rational trier of fact to conclude that the discipline used on T.M. was unreasonable or excessive given the totality of the circumstances. Faggs cites T.M.’s extensive misbehavior to demonstrate that Faggs’ use of corporal punishment was reasonable.

State’s Argument

The issue before this court is a procedural one, not a constitutional one—in a parent-child domestic violence prosecution, did the legislature intend the issue of reasonable corporal punishment to be established by the state as an element of the offense or asserted as an affirmative defense, to be established by a preponderance of the evidence. And while the state acknowledges that parents and persons in loco parentis have the fundamental right to raise their children as they see fit, there is no authority holding that a parent has a fundamental right to administer corporal punishment to a child.

The Court should adopt the Fifth District’s opinion. The Fifth District states that it is not a violation of due process to require a parent, or a person acting in loco parentis, to prove “reasonable parental discipline” as an affirmative defense to a domestic violence charge under R.C. 2919.25(A).

The affirmative defense of “reasonable parental discipline” for a violation of R.C. 2919.25(A) does not violate due process even if a defendant’s fundamental right to parent a child is implicated, so long as a criminal defendant’s burden of proof is limited to a preponderance of the evidence.  Case law suggests that states are given significant deference in creating criminal procedure statutes. States are permitted to require defendants to prove affirmative defenses. Defendants are often required to prove by a preponderance of the evidence an affirmative defense that is peculiarly within the defendant’s knowledge. Burden shifting is only impermissible if the state’s interest in formulating a procedural rule is outweighed by the defendant’s liberty interest. That is not the case here.

The domestic violence statute, R.C. 2919.25(A), does not prevent a parent from using reasonable corporal punishment to discipline his child. However, neither R.C. 2919.25(A) nor State v. Suchomski provides a legal framework for determining which party bears the burden of proof in the context of corporal punishment. The closest regulatory framework provided by the General Assembly, and the one the Court should rely on, is that of R.C. 2901.05(D), which provides a “catch-all” affirmative defense. This statute allows for an affirmative defense “involving an excuse or justification peculiarly within the knowledge of the accused, on which the accused can fairly be required to adduce supporting evidence.” The “reasonable parental discipline” defense is an excuse or justification peculiarly within the knowledge of the defendant, and thus fits within the context of R.C. 2919.25(A).

Faggs acknowledges that a factfinder must examine the totality of the circumstances when considering the issue of reasonable corporal punishment. These factors include information such as the child’s behavior and the child’s responsiveness to punishment. These factors are not well understood by outsiders. Rather, the parent himself has knowledge of his child’s behavior and response to punishment. Thus, the reasonable parental discipline is an excuse or justification peculiarly within the knowledge of the defendant, allowing this defense to fit seamlessly into the catch-all definition for affirmative defenses. Most Ohio appellate districts agree that requiring the defendant to prove reasonable parental discipline as an affirmative defense is a valid exercise of the catch-all affirmative defense definition.

Furthermore, the canons of statutory construction support the Fifth District’s interpretation of R.C. 2901.05(D). Requiring a defendant to prove his innocence by an affirmative defense is a constitutional exercise of the legislature’s power. Thus, the Court need not worry whether the State’s use of the statute is unconstitutional. Because of the doctrine of constitutional avoidance, the Court is obligated to avoid the potential constitutional question. The Court should give effect to the plain meaning of R.C. 2901.05(D) and recognize that the “reasonable parental discipline” affirmative defense is a valid exercise of the catch-all definition of an affirmative defense created by the state legislature.

Finally, Faggs’ criminal conviction would not be changed even if the burden was on the State to prove unreasonable parental discipline, as is evidenced in the trial court’s findings.  Faggs exceeded the scope of his parental rights, and his use of corporal punishment was criminal. There was ample evidence at trial to support the finding of Faggs’ guilt. A reasonable mind could easily have determined that Faggs’ behavior toward T.M. constituted “physical harm” that was out of line with his parental obligations. Therefore, there is no reason to disturb Faggs’ conviction.

Faggs’ Response to Certified Conflict Question

When a parent (or an adult acting in loco parentis) who has administered corporal punishment of a child is charged with domestic violence under R.C. 2919.25(A), the State must prove beyond a reasonable doubt that the defendant’s physical discipline of the child was unreasonable and/or excessive under the totality of the circumstances as a component of the physical harm element of the offense.

State’s Response to Certified Conflict Question

In a criminal prosecution of a parent (or an adult acting in loco parentis) where the defendant’s acts relate to the reasonableness of an act of corporal punishment within the parent-child relationship, defendant bears the burden to assert the affirmative defense of reasonable parental discipline, as set forth in Revised Code Section 2901.05(A).

Amicus in Support of Faggs

Ohio Association of Criminal Defense Lawyers

The Ohio Association of Criminal Defense Lawyers (“OACDL”) filed an amicus brief in support of Faggs. The mission of OACDL is to defend the rights secured by law of persons accused of the commission of a criminal offense.

Ohio law does not expressly designate reasonable parental discipline as an affirmative defense. Thus, if reasonable parental discipline is to be interpreted as an affirmative defense, it must be an excuse or justification peculiarly within the knowledge of the accused.

The Court’s decision in State v. Ireland contains several factors that may guide the Court on whether to permit the use of an affirmative defense. However, because none of these factors apply to reasonable parental discipline, the Court should not allow reasonable parental discipline to serve as an affirmative defense.

Additionally, parental discipline is not an excuse or a justification. Excuses and justifications are intended to apply to situations in which the underlying acts of the defendant were illegal. Excuses and justifications are methods by which the defendant can convince a court that his illegal acts were justified. However, parental discipline is not illegal. The defendant should not be required to prove any fact, including the fact that his parental discipline was reasonable, to avoid culpability. Rather, the prosecution should be required to prove that the defendant was guilty of unreasonable corporal punishment.

Furthermore, the reasonableness of discipline is not peculiarly within the knowledge of the defendant. The facts surrounding the use of corporal punishment are laid out by the evidence – the defendant’s own knowledge adds nothing to the conversation. Additionally, there are few facts available to the defendant that the defendant can use to prove that his use of corporal punishment was reasonable. Finally, the sufficiency of the evidence standard is not applicable for defendants when they raise an affirmative defense, thus limiting the defendant’s options for appellate review. The defendant is therefore limited to the manifest weight argument on review, which is an extremely high burden for any defendant to meet. Therefore, the Court should adopt the Seventh District’s view that the burden of proof is properly placed on the State to prove unreasonable parental discipline.

OACDL’s Proposed Proposition of Law

In a prosecution under the domestic violence statute, R.C. §2929.25, or the assault statute, R.C. §2903.13, of a parent or adult acting in loco parentis while disciplining a child, the State bears the burden of proving unreasonable parental discipline as part of the physical harm element of the offense.

Student Contributor: Maggie Pollitt